United States v. Mariano

• Decision Date: 09 September 2013
• Docket Number: No. 12–2874.,12–2874.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Ricky W. MARIANO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

729 F.3d 874

UNITED STATES of America, Plaintiff–Appellee,

v.Ricky W. MARIANO, Defendant–Appellant.

No. 12–2874.

United States Court of Appeals,

Eighth Circuit.

Submitted: March 15, 2013.

Filed: Sept. 9, 2013.

Daniel L. Gerdts, argued, Golden Valley, MN (Ricky W. Mariano, on the brief), for Appellant.

Laura M. Provinzino, AUSA, argued, Minneapolis, MN (United States of America, on the brief), for Appellee.

Before WOLLMAN and COLLOTON, Circuit Judges, and HOLMES,¹ District Judge.

COLLOTON, Circuit Judge.

A jury found Ricky W. Mariano guilty of two counts of theft of mail matter, in violation of 18 U.S.C. § 1708, two counts of destruction of letter boxes, in violation of 18 U.S.C. § 1705, one count of bank fraud conspiracy, in violation of 18 U.S.C. §§ 1344 and 1349, one count of aiding and abetting attempted bank fraud, in violation of 18 U.S.C. §§ 1344 and 2, and one count of aiding and abetting aggravated identity theft, in violation of 18 U.S.C. §§ 1028A and 2. The district court ² sentenced Mariano to a total term of 70 months' imprisonment, which included a consecutive term of 24 months' imprisonment for aggravated identity theft. Mariano challenges only his conviction for identity theft, charged as Count 14 in the indictment. He contends that the district court's jury instructions and the government's presentation of the case constructively amended the indictment, and that the evidence adduced at trial was insufficient to support the conviction. We affirm.

I.

Mariano and several others participated in a scheme to steal checks and credit cards. The conspirators obtained the checks and credit cards in various ways, including by breaking into post boxes to steal checks enclosed in outgoing United States mail. Using a common cleaning product, the conspirators “washed” the stolen checks to remove the date, payee, payment amount, and signature inked on the check by the lawful account holder. Some members of the conspiracy also burgled vehicles and stole credit and bank cards, passports, and other identity cards. The conspirators used the washed checks and stolen cards without authorization to purchase high-value electronics or other goods at retail stores, which they resold or returned for cash, or traded the stolen checks or cards with each other in exchange for money or drugs.

At trial, several cooperating co-conspirators described Mariano's role in the enterprise. James Newton Hahne, Jr., stated that Mariano directed him to post boxes that Mariano believed might prove especially lucrative, showed Hahne how to remove ink from stolen checks, and provided Hahne and others with checks that Mariano himself had washed, in return for a fee of half of the face value at which the conspirator ultimately negotiated the check.

James Edward Freeman testified that Mariano gave him methamphetamine in exchange for credit cards that Freeman had stolen from parked cars. Freeman added that Mariano generally would offer the stolen checks and cards to a different conspirator rather than use the checks or cards himself because, as Mariano told Freeman, he believed “he looked too much like a drug user and a criminal” to impersonate lawful account holders successfully.

Jacob Dutton stated that he and Mariano broke into multiple post boxes together while under the influence of methamphetamine, with Dutton acting as the driver. Mariano kept the checks that he and Dutton extracted from the mail, washed them, “divvied up” the haul in “his discretion” among the other members of the conspiracy, and directed “who would do what and how much he would get” for each check. On one occasion, Dutton observed between forty-five and sixty freshly washed checks drying on a metal rack in the kitchen of Mariano's home.

Events of March 9, 2011, are important to the prosecution of Mariano for identity theft. Michael Robert Drexl arrived at Dutton's home with a wallet that Drexl had stolen from a parked car. Dutton and Mariano were present. The wallet belonged to a victim identified in the indictment as S.B., and contained three credit or bank cards, including a Capital One credit card.

At trial, Dutton recalled that Drexl “insisted” on keeping a particular credit card for his own use, but could not remember who removed the remaining two credit cards from the wallet. Drexl testified that he was indifferent to which conspirator used the credit cards, so long as he received a portion of the profits. Ultimately, Mariano and Dutton received two stolen cards from Drexl, including the Capital One credit card.

Mariano and Dutton discussed where and how to use the stolen cards. They eventually settled on a plan to purchase electronics from a nearby Walmart and share the proceeds. At some point, Mariano and Dutton decided that Dutton would be the first to use the stolen Capital One credit card inside the store, and that he would then give it to Mariano to use. Dutton, who had never before presented a stolen card to a store cashier, stated that “didn't want” to use the Capital One credit card. He ultimately assented after Mariano “put on” a “guilt trip” and told Dutton that he “never followed through with using anything.” Dutton testified that he and Mariano each handled the stolen Capital One credit card at some point during the Walmart trip. When asked to specify when each man possessed the card, Dutton answered, “You know, I cannot believe that I had the card going into the store.”

Photographs and video recorded by Walmart surveillance cameras showed Mariano and Dutton entering the store and perusing the electronics section together. The men took turns pushing a shopping cart. Mariano eventually sought out a Walmart employee to unlock a case containing a PlayStation. After the store employee removed the PlayStation from the locked case, Dutton proceeded to a sales register in the electronics section and handed a cashier the stolen Capital One credit card. The cashier asked Dutton for identification, and Mariano, who was within earshot, began moving away from the area. Dutton ultimately left the store without the PlayStation, met Mariano in the parking lot, and drove away with him.

A grand jury charged Mariano by superseding indictment with offenses including three counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A. This statute criminalizes the unauthorized transfer, possession, or use of another person's means of identification during and in relation to certain enumerated felonies, including bank fraud. 18 U.S.C. § 1028A(a)(1), (c)(5). The indictment listed Counts 11–15 as a group. A prefatory paragraph alleged that Mariano and a co-defendant did “knowingly transfer, possess, and use” a means of identification of another person “as alleged in each count below.” Count 14 then specified that Mariano was charged with “[u]nlawful possession and transfer of name, address, bank account number, and bank routing number of victim S.B. for $385.96 attempted credit card purchase during commission of Bank Fraud, as alleged in Count 9.” Count 9 charged Mariano with attempting unlawfully to withdraw $385.96, the price of the PlayStation, from the Capital One credit account of victim S.B.

At trial, Mariano challenged only the identity theft charges and conceded his guilt on the remaining counts. The jury convicted Mariano of aggravated identity theft, as charged in Count 14, and bank fraud, as charged in Count 9. It also convicted him of two counts of theft of mail matter, two counts of destruction of letter boxes, and one count of bank fraud conspiracy. Mariano was acquitted of the remaining two charges of aggravated identity theft, listed as Counts 11 and 13 in the indictment, which did not involve victim S.B. Following the verdict, Mariano moved for a judgment of acquittal on Count 14, and the district court denied the motion. The court sentenced Mariano, and he appeals.

II.

A.

Mariano first contends that the district court constructively amended the indictment by instructing the jury that it could convict him if he “transferred, possessed or used” victim S.B.'s means of identification. As a consequence, he argues, the jury could have convicted him of unlawfully using or aiding and abetting the unlawful use of victim S.B.'s Capital One credit card, rather than unlawful possession or transfer of the card, as charged in the indictment. He complains that the problem was compounded by the government's closing argument that Mariano “used” or aided and abetted Dutton's attempt to “use” the stolen Capital One credit card.

Not only did Mariano raise no objection to the district court's inclusion of “use” in the jury instruction, but he affirmatively requested the language. Before trial, Mariano submitted the following proposed instruction:

The crime of aggravated identity theft, as charged in Counts 11, 13, and 14 of the indictment, has four elements, which are:

One, the defendant knowingly [transferred] [possessed] [used] the (specify means of identification transferred, possessed, or used);

Two, the defendant knew that the (specify means of identification) the defendant [transferred] [possessed] [used] belonged to another actual person;

Three, the defendant [transferred] [possessed] [used] the (specify means of identification) without lawful authority; and,

Four, the defendant [transferred] [possessed] [used] the (specify means of identification) during and in relation to the crime of bank fraud, as charged in Counts 8 and 9 of the indictment.

R. Doc. 328, at 22 (brackets in original). The bracketed material left ambiguity about the elements, but a later colloquy was more precise.

Following the close of evidence, the district court discussed the jury instructions with the parties. Mariano asked to be excused and the district court granted his request, after confirming that he understood his right to be present and cautioning him that the court would “be making some decisions about the jury instructions.” During the subsequent colloquy,...